Gail Blanchard-SaigerVice President & Counsel, Labor & Employment

February 2, 2018

Gail Blanchard-Saiger is the Vice-President & Counsel, Labor and Employment for the California Hospital Association. In this role she provides leadership for state and federal legislative and regulatory issues related to hospital human resources and labor relations. She is a member of the American Society for Healthcare Human Resources Administration and serves on its Advocacy Committee. She is a frequent speaker and author on healthcare workplace law issues.

Gail M. Blanchard-Saiger has 20 years of experience as a labor and employment attorney representing hospitals and healthcare. Prior to attending law school, Ms. Blanchard-Saiger worked as a human resources manager at a non-profit senior service agency. Ms. Blanchard-Saiger is a member of the California State Bar.

Last week, the Office of Federal Contract Compliance (OFCCP) issued the attached update emphasizing the agency’s role in compliance assistance. Titled “What Federal Contractors Can Expect,” the document explains that contractors “seeking OFCCP’s assistance with satisfying their nondiscrimination and equal employment opportunity obligations can expect clear, accurate, and professional interactions with OFCCP’s staff. OFCCP provides compliance assistance on a range of issues including technical help with understanding the requirements for developing an Affirmative Action Program.”

The release of this document came at approximately the same time as an announcement that OFCCP Director Ondray Harris was stepping down after eight months. Deputy Director Craig E. Leen will serve as OFCCP’s interim director until a permanent director is named, at which time the agency’s direction could shift.

Last week the California Supreme Court issued another opinion where it found that California wage and hour law differs from federal wage and hour law. In Troester v. StarbucksCorporation, the court concluded that California’s “wage orders and statutes do not permit application of the de minimis rule[...], where the employer required the employee to work ‘off the clock’ several minutes per shift. We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.” In the case, the plaintiff submitted evidence that he was required to clock out and then perform some additional store closing activities that required him to work four to 10 minutes each day after clocking out.

In AHMC Healthcare Inc. v. Superior Court, the 2nd District Court of Appeal dismissed the portion of a plaintiff’s lawsuit challenging the employer’s timekeeping system’s rounding practice. The issue in the case was whether an employer’s use of a timekeeping system that automatically rounds employee time up or down to the nearest quarter hour, and thus provides a less than exact measure of employee work time, violates California law. The court found that, based on the facts in that case, the system did not violate California law.

AHMC Healthcare’s timekeeping system rounds employees’ time clock swipes up or down to the nearest quarter hour. For example, if an employee clocks in between 6:53 and 7:07, he or she is paid as if he or she had clocked in at 7:00; if an employee clocks in from 7:23 to 7:37, he or she is paid as if he or she had clocked in at 7:30. In addition, meal breaks that last between 23 and 37 minutes are rounded to 30 minutes. This practice is consistent with a federal regulation so long as the rounding system “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” While there is no state law or regulation on the issue of rounding, plaintiffs did not dispute that the federal regulation is applicable to claims made under state law. The court also noted that the California Division of Labor Standards Enforcement adopted the federal regulation in its Enforcement Policies and Interpretations Manual.

The Office of Federal Contract Compliance Programs (OFCCP) has extended the moratorium on enforcing the affirmative obligations required of TRICARE subcontractors through May 7, 2021.

In 2014, OFCCP ordered a five–year suspension of affirmative obligations — a requirement to take affirmative steps to ensure equal employment opportunity in employment processes — for TRICARE subcontractors. OFCCP committed to using the five-year period to provide guidance on policy and procedures, as affiliated entities and the Department of Labor had conflicting interpretations of the law. The moratorium was set to expire on May 7, 2019.

OFCCP will use the extended moratorium time frame to collect additional stakeholder feedback, as well as to plan for legislative changes that could be enacted by Congress in the near future.

The moratorium does not apply to health care providers holding separate, independent, non-health care-related federal contracts or subcontracts. In addition, the moratorium does not affect Medicaid and Medicare providers, which are not considered contractors or subcontractors subject to OFCCP’s jurisdiction.

As previously reported, the California Department of Public Health (CDPH) has been ordered to release the names and personal addresses of all licensed certified nursing assistants, home health aides, hemodialysis technicians and nursing home administrators. The order resulted from a Public Records Act request filed by the Service Employees International Union-United Healthcare Workers West (SEIU-UHW) in April 2017. After CDPH refused to provide the requested information, SEIU-UHW filed a writ, seeking an order compelling CDPH to release the information. In a March 2018 order, the Superior Court granted SEIU-UHW’s writ.

CDPH was originally poised to release the licensee contact information on May 15, but the CDPH website currently indicates that it intends to release the information on May 22. CDPH invites impacted licensees to submit a change of address by May 21 if they do not wish their home address to be disclosed.